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The Defense of Marriage Act (DOMA) and the Call for a Constitutional Amendment

In 2013, the U.S. Supreme Court found key provisions of the Defense of Marriage Act (DOMA) unconstitutional. This means married gay and lesbian couples living in states that allow same-sex marriage are entitled to the same federal benefits and protections extended to married heterosexual couples. The Court did not invalidate state bans on same-sex marriage, but rather decided that the U.S. must recognize state-sanctioned same-sex marriages. This has been a rapidly changing area of law with sharp differences among the states and federal government, and remains in flux.  Below is a look at how the Defense of Marriage Act came about and its legal effects before the Supreme Court's 2013 ruling.

Hawaii's Struggle Over Same-Sex Marriage: A Precursor to Federal Action

The Baehr v. Lewin decision in 1993 mobilized opponents of same-sex marriages, who feared that gay marriage would soon be legal in Hawaii. Yet some disagreed over whether Hawaii's potential legalization of gay marriage would necessarily overrule other states' anti-gay marriage laws. Nevertheless, anti-gay marriage legislation was passed on both the state and federal level. Voters in Hawaii adopted a constitutional amendment allowing legislators to ban same-sex marriages, thus making the state's Equal Rights Amendment no longer applicable. In late 1999, the Hawaiian Supreme Court determined that this new ban was effective and refused to recognize same-sex marriages in the state.

Laws and court decisions addressing same-sex marriage have been mostly limited to the states, with one key exception: the Defense of Marriage Act. 

DOMA's Legal Effects

In 1996, in response to the Baehr decision, the U.S. Congress passed DOMA and President Clinton signed it into law. The act was designed to prevent the Full Faith and Credit Clause from being applied to states' refusal to recognize same sex marriages. DOMA stated in part that "No state, territory or possession of the United States ... shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such a relationship."

DOMA did not ban same-sex marriages in itself, neither did it require any state to ban them. DOMA defined marriage as a union between a man and a woman only and specifically denied federal benefits to same-sex couples. The act states that any federal law that applies to married couples does not apply to a same-sex couple: statutory and administrative use of terms such as "marriage" and "spouse" under federal law only applied to heterosexual couples prior to the Court's 2013 ruling.

The Call for a Constitutional Amendment

In February 2004, President George W. Bush called for a constitutional amendment to ban same-sex marriage nationwide. The president said that DOMA was vulnerable to attack under the Full Faith and Credit clause, a sentiment echoed by numerous commentators. President Bush stated that only way to ensure DOMA would not be struck down by "activist courts" is through an amendment that would" fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage." Proposed amendments have been introduced in Congress, but no vote has yet taken place.

Bush threw his support behind a federal marriage amendment after events in Massachusetts and San Francisco. In late 2003 and early 2004, officials in both places seemingly authorized same-sex marriages.

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